FISA SECTION 702: AN UNCONSTITUTIONAL
INFRINGEMENT OF EXECUTIVE POWER
IV. FISA’S EFFECT ON NATIONAL SECURITY
A few words about the harmful consequences of FISA may be in order. Not only did it violate the Constitution by usurping presidential power, but it also undermined American national security. Indeed, one can argue that, had FISA not been enacted, the 9/11 attacks may not have succeeded.
Most unauthorized disclosures of classified national security information (“leaks”) come from within the Executive Branch, but a disproportionate share come from Capitol Hill.66 The recognition that members of Congress could not keep secrets was at the core of the Framers’
decision to exclude them from “the business of intelligence.”67 Affirming that wisdom, following the enactment of statutes requiring disclosure of America’s most sensitive intelligence activities to Congress, leaks became far more frequent.68
The FISA statute made it a felony for government employees to engage in foreign intelligence electronic surveillance outside the complex procedures established by the 1978 statute.69 That, quite understandably, had a chilling effect across the board. One of many constraints on obtaining a FISA warrant was that the determination that an individual was an “agent” of a foreign power could not be made “solely upon the basis of activities protected by the [F]irst [A]mendment to the Constitution of the United States.”70 Thus, if a suspected terrorist published an article or delivered a speech confessing to such a role, it presumably could not be used to obtain a warrant. Nor could they obtain a FISA warrant if an individual publicly declared a belief that Allah wanted all infidels violently murdered. The First Amendment protects freedom of religious belief, speech and of the press—and that is a great thing. But the idea that threatening words cannot be used to initiate an investigation into possible criminal activity—especially in the context of trying to prevent a major terrorist attack—is absurd.
The case of Zacarias Moussaoui is instructive. A French citizen, Moussaoui took lessons on how to fly a small aircraft in Norman, Oklahoma in early 2001.71 Moussaoui then showed up at the Pan Am International Flight Academy outside Minneapolis, Minnesota, with $6,800 in cash seeking training in a Boeing 747 flight simulator.72 Suspicious flight instructors (whose students normally brought with them cashiers’ checks from major airlines) alerted the FBI that Moussaoui might be a terrorist, and he was soon arrested for an immigration violation.73
Concerned that he might be planning a terrorist attack, the local FBI office repeatedly sought to obtain a FISA warrant so they could examine the contents of a laptop computer they had seized when they arrested
Moussaoui.74 But Congress had decided the President should not be able to examine laptops of suspected foreign terrorists unless the FBI could first establish that the owner was an “agent of a foreign power”—a narrowly defined term that required that the target “do the bidding of the foreign power.”75 Knowing almost nothing about Moussaoui, that was impossible. It is unclear whether there was anything on Moussaoui’s laptop that might have alerted authorities to the pending 9/11 attacks, but that certainly might have been the case.
In 2006, Congress amended FISA to address the “lone wolf” problem of a foreign terrorist who was not an agent of a foreign power. Senator Arlen Spector, Chairman of the Senate Judiciary Committee, introduced legislation that accurately summarized the problem as it existed immediately prior to 9/11:
For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain ... an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer.76Put simply, Congress did not anticipate all of the threats that might confront the nation in the future. Ironically, this concern was a key consideration when the Framers of the Constitution decided to vest the “executive Power” in the President—a point emphasized by Alexander Hamilton in the Federalist papers.77 In his Second Treatise on Civil Government, John Locke explained that circumstances in relations with foreign nations would constantly be changing, and were “much less capable to be directed by antecedent, standing, positive Laws, than [by] the [E]xecutive.”78 Therefore, such matters “must necessarily be left to the prudence and wisdom of those, whose hands [the Executive Power] is in, to be managed for the public good.”79
Very concerned that Moussaoui’s flying lessons might be connected to a major terrorist plot, the FBI contacted intelligence services from friendly countries seeking information tying him to a “foreign power”80—a term that included transnational terrorist groups like al-Qaeda.81 The French provided some information in an effort to be helpful, but it was insufficient to justify
a warrant.82 Despite repeated requests emphasizing the urgency of the situation, the British did not respond for more than two weeks.83
Shortly after the 9/11 attacks, the British provided information establishing that Moussaoui had attended an al-Qaeda training camp in Afghanistan84—information that if gained earlier might have justified a FISA application. Three years after this event, the Department of Justice Inspector General released a massive report on the Moussaoui affair detailing the events leading up to attack.
In disclosing this event, the report commented: “It is not clear why the information from the British was not provided to the FBI until after September 11,” as the request had initially been made both in writing and by phone on August 21, 2001.85 Having spoken with friends who have worked for foreign intelligence services over many years, the author strongly suspects that the information placing Moussaoui in an al-Qaeda training camp most likely came from a very sensitive source that the British could not afford to have compromised—and America’s inability to keep secrets persuaded them to withhold the information initially. Recall, this was precisely the same reason Benjamin Franklin and his colleagues on the Committee of Secret Correspondence decided they could not share information about a French covert operation with others in Congress.86
After the 9/11 attacks, President George W. Bush authorized the National Security Agency to engage in more vigorous collection efforts against suspected foreign terrorists87—a program that would have been widely recognized as lawful prior to FISA. General Michael Hayden, who served as Director of NSA at the time of the 9/11 attacks, has publicly expressed the view that had the controversial NSA Terrorist Surveillance Program (TSP) been in effect prior to those attacks, “[the United States intelligence community] would have detected some of the 9/11 al Qaeda operatives in the United States, and would have identified them as such.”88 FISA was the primary reason the TSP was not in effect prior to the 9/11 attacks.